IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120013128 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge.

2.  The applicant states:

* His discharge was a result of an automobile accident and the charge of driving while intoxicated (DWI) while stationed at Fort Hood, TX
* It was a bad decision on his part; however, he has since learned a valuable lesson
* He was sentenced to 5 years in prison and he was incarcerated for
18 months
* He has not had any alcoholic beverages or a moving violation since that time
* He was told he was a good Soldier and he was released to the State of Texas so he would not face two trials, civilian and military
* He served his sentence and he has lived a clean life with a family

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 3 April 1991 and he held military occupational specialty 19K (M-1 Armor Crewmember).  The highest rank/grade he attained was private/E-2.

3.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and Expert Marksmanship Qualification Badge with Pistol Bar.  He was assigned to the 3rd Battalion, 8th Cavalry, Fort Hood, TX.

4.  On 2 January 1992, he received a General Officer Memorandum of Reprimand (GOMOR) for DWI on 28 November 1991.

5.  On 16 April 1992, his immediate commander initiated a Bar to Reenlistment Certificate against him citing an incident of failure to stop and render aid and DWI on 7 April 1992 and the suspension of his installation driving privileges for drunk driving.  He was provided a copy of this bar to reenlistment and he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the approval authority.

6.  On 2 October 1992, he was convicted by the 264th District Court, Bell County, TX, of the civilian charges of failing to stop and render aid on 28 November 1991. The court sentenced him to 5 years of imprisonment. 

7.  On 6 November 1993, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for conviction by civil court.  He recommended a general discharge.

8.  On 9 November 1993, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board.  He acknowledged he understood that:
* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

9.  Subsequent to his acknowledgement, on 16 November 1993, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by civil court.  The immediate commander further recommended an under honorable conditions discharge.

10.  On 19 November 1993, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed the applicant be issued an Under Honorable Conditions Discharge Certificate.  On 29 November 1993, the applicant was accordingly discharged.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further confirms that the applicant completed 1 year, 6 months, and 26 days of creditable active military service and he had lost time from 30 January to 13 March 1992 and 27 to 29 October 1993.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  


14.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a civil court of a driving-related incident - a serious offense - and he was sentenced to 5 years of imprisonment.  As required by the applicable regulation, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  Given his misconduct resulting in a GOMOR for a DWI, the bar to reenlistment, and the civilian conviction, it is clear that his service did not meet the criteria for an honorable discharge.  A discharge of this nature normally carries an under other than honorable conditions discharge.  However, it appears the applicant's chain of command considered his service and recommended a general discharge.  

3.  His actions at the time clearly brought discredit upon himself and the Army.  Therefore, he is not entitled to an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case

are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120013128



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ABCMR Record of Proceedings (cont)                                         AR20120013128



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